Halbrook Reviews Right to Bear Arms

by Ari Armstrong, November 15, 2005

Stephen Halbrook, a Ph.D in philosophy and an attorney who has prevailed in three Supreme Court cases, came to Denver on November 14 to offer a fast-paced review of the Second Amendment, the right to keep and bear arms, and recent events involving the Supreme Court. Halbrook addressed the University of Denver Sturm College of Law at the invitation of the Federalist Society. He will return to Denver next month to argue before Colorado's Supreme Court regarding the conflict between Denver's gun ordinances and state law.

An audio recording of Halbrook's complete presentation is available; the present article will touch on only some of the points that he covered in his talk.

In the context of reviewing some of the ideas of John Roberts and Samuel Alito, Halbrook offered a brief history of Second Amendment interpretation. He said that, into the 1960s, the general interpretation of the Second Amendment held that "the people" discussed in that amendment means the same thing as "the people" referenced in the First, Fourth, Ninth, and Tenth amendments. But in the late 1960s, the collective-rights interpretation of the Second Amendment was "invented."

However, Halbrook said, the fact that the militia is covered in Article I, Section 8 of the Constitution suggests that the Bill of Rights is not concerned merely with allowing the government to establish a militia. Generally, in Constitutional parlance, the government has powers, while individuals have rights.

By Halbrook's account, Roberts answered questions about the 1939 Miller case during an exchange with Senator Russ Feingold. Roberts argued that Miller does not establish a collective-rights view of the Second Amendment, though it does provide for a "militia test" regarding the types of arms that an individual has the right to keep and bear. Halbrook also mentioned the fact that, in the Miller case, the defendant did not appear in court and the defense attorney did not bother to create a case -- a practice that Halbrook suggested would result in a finding of malpractice today.

While the Brady Campaign has tried to demonize Alito, Halbrook said that the judge has merely made some well-grounded comments about the commerce powers of Congress. Halbrook pointed out that the 1934 National Firearms Act is "based on the power to tax." However, the idea that Congress has "limited, enumerated powers" has slowly been eroded by expansion of the commerce clause, Halbrook said, and during the last decade Congress passed gun laws that had no connection to interstate commerce. The Supreme Court reacted by ruling there must be at least some such connection.

Halbrook was also involved in litigation concerning the confiscation of guns in New Orleans. He said that, despite clear language in the state's constitution that protects the right to keep and bear arms, local police conducted illegal searches and illegally seized firearms. This is despite the fact that, in some areas damaged by the hurricane, people used guns effectively for defensive purposes.

The debate over Denver's gun ordinances goes back years, Halbrook reviewed. Previously, Halbrook argued that Denver's so-called "assault-weapons" ban both violated the right to keep and bear arms as described in the state's constitution and contained unconstitutionally vague provisions. Halbrook said the state's Supreme Court ignored the issue of fundamental rights but did grant that some of the language was vague. More recently, the state legislature passed two "preemption" bills that intended to invalidate some Denver gun ordinances. "We'll see what your court will decide about that," Halbrook said.

Halbrook claimed that, according to Denver ordinance, it's illegal even to carry a gun within one's own home, though being in one's home is an "affirmative defense." In other words, Denver police can arrest you for carrying a gun in your own home, but then you can invoke the defense in court. So I looked this up online. Section 38-117 (b) states, "It shall be unlawful for any person, except a law enforcement officer... to carry, use or wear any dangerous or deadly weapon..." Section (f) provides an exception for "carrying [a] handgun in conformance with any applicable state or local law" and for "carrying the weapon concealed within a private automobile..." I do not find any exception for weapons other than handguns within one's own home. Section 38-118 provides for affirmative defenses.

The Denver ban on "assault" weapons clearly involved guns possessed in one's own home, and thus, for Halbrook, is clearly over the line. Whether he can persuade the state's left-leaning Supreme Court remains to be seen.